When to Mediate? The Timing Question
There is no single answer for when to mediate. Each case has unique facts, personalities, and risks. Still, some of the largest settlements happened through mediation before filing. For defendants, early mediation can prevent more disputes. For plaintiffs, ethical issues may arise, but confidentiality agreements—carefully drafted and compliant with SEC and state rules—can address those concerns.
Pre-Filing Mediation & Tolling Agreements
In many disputes, tolling agreements provide both sides with the opportunity to evaluate a case without the pressure of immediate filing. But not all tolling agreements are created equal. Enforceability varies from state to state, and under certain circumstances, they may be subject to challenge. Knowing the law in your jurisdiction is essential before relying on these agreements as a foundation for early mediation.
Postponements & Strategic Considerations
What if defense counsel proposes delaying arbitration or trial for mediation? Plaintiffs may view it as a trap or weakness, but practical considerations often influence the choice:
- A client’s age or health may mean that resolving the issue sooner is better.
- The plaintiff’s attorney may face scheduling conflicts with other trials.
Setting a negotiated "bracket"—minimum defense offer, plaintiff’s ceiling—before mediation ensures good faith on both sides.
Weighing the Pros and Cons
There’s rarely an easy answer. By trial, both sides have likely invested significant time, energy, and money. This makes the decision even more nuanced.
At GW ADR, we don’t urge clients to mediate immediately. We help you weigh the pros and cons of mediating now versus later, and determine whether mediation is the right choice. Our job is to provide you with clarity, structure, and perspective, so you can make a decision in your client’s best interest.